The proposed changes to Victoria's Planning Act are not without controversy and further refinement in some areas, if not rethinking, is warranted.
In 2008, the Victorian Government commenced its review of the Planning and Environment Act 1987 (Vic) – the first major review of the Act since its commencement in 1987. In August 2009, the Department of Planning and Community Development issued five Response Papers which addressed the issues raised in more than 150 submissions on the initial discussion paper, "Modernising Victoria's Planning Act: a discussion paper on opportunities to improve the Planning and Environment Act 1987" ( We looked at these Response Papers in September).
An Exposure Draft of the Planning and Environment (General) Bill 2009 (Vic) followed in December 2009.
As foreshadowed by the Response Papers, the Draft Bill targeted the following key areas:
- the objectives of planning in Victoria;
- the planning scheme amendment process;
- the planning permit process;
- state significant development; and
- section 173 agreements.
Submissions on the Draft Bill closed on 12 February 2010 and we must now wait to see what form the final Bill will take. No indication has been given as to the likely date it will be introduced into Parliament, however if it is to be passed before the State election in November, we would expect it to be introduced very shortly.
Streamlining and increased efficiency for planning scheme amendments
The current process for amending a planning scheme can be lengthy and, in the case of uncontentious and largely administrative amendments, unnecessarily protracted. A key reform proposed by the Draft Bill is to introduce a streamlined process for those planning scheme amendments which do not warrant community consultation or require detailed examination by a Panel. This process will only be available for certain amendments, and is intended to complement the existing process which will continue to provide an opportunity for full third-party involvement in those planning scheme amendments likely to have a discernable impact on the community.
Matters to which the new streamlined process applies would include:
- corrections to anomalous provisions and the removal of redundant provisions;
- changes to ensure provisions reflect the policy intent of the planning scheme;
- amendments to the Victoria Planning Provisions; and
- the introduction of interim provisions.
If employed appropriately, a streamlined process for uncontentious planning scheme amendments would be a positive change which has the potential to improve the efficiency of the planning system without unduly compromising third party rights.
Any person can be authorised to prepare an amendment
Under the Draft Bill, the Minister has the power to authorise any person, including a proponent, to prepare an amendment and carry out specific procedural steps where the Minister decides that a proposal has merit. Currently, a planning scheme amendment can only be prepared by the Planning Minister (section 8) another Minister or public authority (section 9) or, more commonly, by a municipal council if authorised by the Minister (section 8A).
The procedural steps that an authorised person may also be authorised to undertake include:
- giving notice of the amendment;
- considering submissions;
- referring submissions to a panel; and
- considering the panel report.
After completing these steps, the authorised person must submit the amendment to the planning authority with a recommendation about whether or not the amendment should be approved.
This shift in responsibility from councils and the Minister to authorised persons is intended to:
- improve the efficiency of the planning scheme amendment process;
- reduce the administrative burden on municipal authorities;
- avoid the deadlocks which can arise when councils refuse to place an amendment on exhibition at the request of a proponent, either on principle or because of lack of resources.
Not surprisingly, a number of submissions on the Draft Bill raised questions about the suitability of certain persons to be an authorised person, and the scope of their role. Ministerial Guidelines will determine the responsibilities of an authorised person and, to avoid the risk (or appearance) of bias in proponent driven amendments, the Guidelines will no doubt make clear that the role of an authorised person is to be limited to purely procedural steps.
Code assess to expedite planning permit process
Another key reform proposed to be introduced by the Draft Bill is the "code assess" process for straightforward, low-impact classes of applications. As noted in the Commentary, "code assess" applications will be limited to particular classes of use and development that:
- are straightforward;
- are consistent with policy
- are consistent with the zoning of land; and
- have limited or no off-site impacts.
These applications will be assessed against criteria set out in the planning scheme that have been determined after community consultation. The Chief Executive Officer of the council will be the responsible authority for code assess applications[1], however delegated decision-making for code assess applications by council officers will be encouraged.
Importantly, applications which fall into this category will not be subject to public notice, and review of a "code assess" decision is not available to third parties. The permit applicant may, however, seek review of:
- a decision that the proposal does not meet the criteria; or
- conditions imposed on the permit.
It is also proposed that the Regulations be amended to prescribe a reduced statutory time period of 14 days for an applicant to seek a review to VCAT against the failure of the responsible authority to decide a code assess application. It is proposed (though not in the Draft Bill) that a simple process will be established at VCAT to determine code assess review proceedings.
Reforms for amending planning permits: removing secondary consents
The proposal to remove the system of amendment by secondary consent is one of the more controversial amendments proposed by the Draft Bill. The impact of a such a reform is likely to be significant, not least because the Bill proposes that the ability to grant a secondary consent is to be removed even for existing permits. This will require applicants to apply for an amendment to the permit either to the council under section 72 or the Tribunal under section 87.
The purpose of the amendment is to standardise the process of amending permits and to address the concern that, under the current system of secondary consents, the amendment of permits has become haphazard and unpredictable. The Draft Bill also seeks to avoid the creeping transformation of projects which may occur as a result of repeated amendments by secondary consent, all without public scrutiny.
However, as noted by Deputy President Mark Dwyer in Zuzek v Boroondara CC [2007] VCAT 2174, the flexibility offered by the secondary consent process is a necessary complement to a primary consent given in the early stage of a development:
Under the Draft Bill, even the most inconsequential changes (relocating columns in a basement of a car park, providing additional car parking spaces, increasing the size of canopies etc) which are unlikely to have any off-site impacts would need to be processed as an amendment to a permit pursuant to section 72 or section 87 of the Act. The increase in cost and time involved in following this amendment process would be impractical (and seemingly unwarranted) in many cases and, ultimately, could lead to an increase in non-compliance with permits.
Clearly it is difficult to achieve a balance between:
- ensuring the procedure for material amendments to permits is transparent and predictable; and
- avoiding unrealistic and onerous procedures for minor or inconsequential amendments.
Given that decisions about secondary consent amendments are generally made at officer level, one approach to achieving this balance would be to include in the legislation clear parameters setting out how and when it is appropriate to make an amendment by secondary consent. Further, in circumstances where there is a concern about amendments being made without adequate examination and third party review, a secondary consent provision need not be included in the permit.
A less contentious change is the proposal that responsible authorities be given the power to amend permits that have been issued at the direction of the Tribunal. Currently, section 72(2)(a) requires that permits issued at the direction of the Tribunal can only be amended by the Tribunal itself. Despite this change, the Tribunal will still have the power to specify that a permit, or a part of the permit, may not be amended other than by application to the Tribunal.
State significant developments
A new Division 2 to Part 9A of the Act is proposed to be introduced to provide a specific process for declaring and assessing State significant developments. The new section 201QU would enable the Minister to prepare and approve an amendment to a planning scheme to give effect to the approval of a State significant development.
The new process will not apply however to projects declared under the Major Transport Project Facilitation Act 2009 (which we look at elsewhere in this edition).
The following flow chart is provided in the Commentary of the Draft Bill and gives a useful illustration of how the new process will look:
The criteria for what is a State significant development will be detailed in guidelines or a Minister's direction, but are as yet unknown.
Interestingly, the Draft Bill did not include revisions to Division 6 which provide for the Minister's powers in relation to planning permit applications. The power of the Minister to "call-in" an application has been exercised in quite controversial circumstances in recent years and clearer parameters around which this power can be exercised by the Minister could have been included to complement the new provisions on State significant developments.
Section 173 agreements
The Draft Bill also introduces a range of refinements to the rules governing agreements under section 173 of the Act. The key changes are intended to:
- reduce the unnecessary involvement of the Minister in ending and amending agreements;
- remove the requirement that an agreement be lodged with the Minister;
- provide a clear mechanism – which does not involve the Minister – for the ending and amending agreements;
- provide a right of review to a party seeking to end or amend an agreement, where consent to the amendment or ending of the agreement is not given by the responsible authority; and
- to provide scope for a declaration by the Tribunal on the interpretation of terms of a section 173 agreement.
There is also provision in the Draft Bill for a bond or guarantee to be secured by an agreement required by a permit condition rather than by section 173 agreement. This may reduce the reliance on section 173 agreements which is the most commonly used mechanism for obtaining financial security from developers.
Conclusion
The various reforms proposed in the Planning and Environment Draft Bill have the potential to bring significant improvements to the regulation of land use planning and development in Victoria. The changes are not without controversy and further refinement in some areas, if not rethinking, is warranted. With submissions on the Draft Bill now closed, it will be interesting to see what modifications are included in the final version of Bill and how effectively the Bill manages to reconcile the competing interests of the various stakeholders.
[1] Planning schemes will be amended to specify the CEO as the responsible authority for code assess applications under the relevant planning scheme.
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